Russell v. State

GARRITY, Judge. The appellant, Paul Alexander Russell, who had been charged in a three-count indictment, was convicted on July 25, 1985, by a jury in the Circuit Court for Montgomery County (Latham, J. presiding) of possession of controlled dangerous substances and of possession of controlled paraphernalia. The jury was unable to reach a verdict as to the charge of possession with intent to distribute a controlled dangerous substance (marijuana). Upon retrial of that charge on January 17,1986, however, he was convicted by a jury (Messitte, J. presiding).

The appellant was resentenced, and at such time Count II (possession of a controlled dangerous substance) was merged with Count I (possession with intent to distribute). Upon consolidation for appeal, we are asked to review the following issues. I. Whether the indictment was fatally defective as to Count III as it failed to allege the specific intent of the offense charged regarding the possession of controlled paraphernalia. ⁵⁵⁸ II. Whether the trial court committed reversible error by instructing the jury as to a different charge from that for which the appellant had been indicted in Count III (possession of controlled paraphernalia).

III

Whether the appellant was denied a fair and impartial trial as to Count I (possession with intent to distribute) because of “the State’s numerous references to appellant’s involvement in Jamaican drug trafficking.” IV. Whether the trial judge erred by failing to grant a mistrial as to Count I (possession with intent to distribute). Facts In October, 1984, after receiving information from a confidential informant, the Montgomery County Police Department initiated an investigation of the appellant. The informant advised that the appellant was involved in illegal narcotics activity operating out of an apartment in Silver Spring.

A surveillance team monitored the activity at the apartment for a number of days and obtained a search warrant. The search revealed a large quantity of marijuana in the rear bedroom and items of controlled paraphernalia in other areas of the apartment. 1 Although we shall reverse the judgment of conviction as to Count III (possession of controlled paraphernalia), because of improper jury instructions on that charge, we shall discuss the issues in seriatim. I. Indictment The appellant contends that Count III of the indictment failed to allege that he had possessed certain paraphernalia with the specific intent to use the items in connection with the illegal manufacture, distribution, or dispensing ⁵⁵⁹ of a controlled dangerous substance. He argues that because Md.Ann.Code art. 27, § 287(d) requires that specific intent, the indictment is fatally defective.

We disagree. Count III of the indictment alleged that Paul Alexander Russell, on or about November 7, 1984, in Montgomery County, Maryland, unlawfully did possess certain controlled paraphernalia in violation of Article 27, Section 287(d) of the Annotated Code of Maryland ... As this court stated in Whitehead v. State, 54 Md.App. 428 , 458 A.2d 905 , cert. denied, 296 Md. 655 (1983), “reference to the statute here was not a mere citation for the purposes of convenience.” Id. at 444-45, 458 A.2d 905 . Here, as in Whitehead , the specific charge was that the appellant had committed a proscribed act in violation of a particular statute, i.e., had possessed controlled paraphernalia in violation of article 27, § 287(d).

We reaffirm our holding that “[t]he effect of charging in that manner was to incorporate by reference the elements of the statutory offense ... as though the section had been set forth in full ... in the indictment.” Id. at 445, 458 A.2d 905 . See also Jones v. State, 303 Md. 323 , 493 A.2d 1062 (1985); Williams v. State, 302 Md. 787 , 490 A.2d 1277 (1985).

II

Jury Instructions—Count III As previously discussed, the appellant was charged in Count III with possession of controlled paraphernalia under Md.Ann.Code art. 27, § 287(d). Part (ii) of this subsection, which applies to the evidence in the case sub judice, prohibits the possession of: Gelatin capsules, glassine envelopes or any other container suitable for the packaging of individual quantities of controlled dangerous substances in sufficient quantity to and under circumstances which reasonably indicate an intention to use any such item for the illegal manufacture, distribution, or dispensing of any such controlled dangerous substances____ (emphasis added). A review of the jury instructions with respect to Count III reveals, however, that the trial judge told the jury: ⁵⁶⁰ Controlled paraphernalia is defined under 287(a) as follows: 2 “As used in this section, the term ‘drug paraphernalia’ means all equipment, products and material of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producting, processing, preparing, testing, analyzing, packaging, repackaging or storing." (emphasis added). Several other items, ladies and gentlemen, that fall within that definition.

Scales and balances used, intended for use or designed for use in weighing or measuring controlled dangerous substances falls within drug paraphernalia. Containers and other objects used, intended for use or designed for use in storing or concealing controlled dangerous substances is one of the definitions of drug paraphernalia, and lastly, bongs, which you have heard about, is also considered drug paraphernalia. You must determine whether or not the material in questions was a controlled paraphernalia which has been designated by statute, and lastly, if you conclude that, you must also consider whether Mr. Russell was in possession of that in accordance with the previous definition of possession which I earlier gave you. Those are the matters that you must consider in deciding whether he is guilty or not guilty of the third count of the indictment, (emphasis added).

Defense counsel called to the court’s attention that the paraphernalia definition used by the court applied to § 287A(a) rather than § 287(d), the section under which the appellant had been indicted. The trial judge, however, stated his belief that the instruction adequately covered § 287(d). As § 287A(á) and § 287(d) contain substantive differences with respect to the type of conduct proscribed and to the specific intent involved, however, we believe the instructions were erroneous. ⁵⁶¹ In addition to authorizing the imposition of a more severe penalty than contained in § 287A, the offense chargeable under § 287(d) defines specific conduct relating to a substantially different offense. 3 Indeed, contrary to the State’s argument on appeal, the State Attorney General recognized crucial differences between the sections when analyzing the statute. See 66 Op.Att’y Gen. 125 (1981).

In his opinion, the Attorney General observed: Although § 287(d) and 287A define similar offenses, the two prohibitions nevertheless contain some important differences. First, § 287A is a much broader statute than 287(d): § 287A, unlike § 287(d), covers virtually every item of drug paraphernalia that can be used in connection with any of the many and diverse controlled dangerous substances. Second, § 287A contains a specialized definition of “drug paraphernalia”; § 287(d) does not. Third, § 287A, unlike § 287(d), incorporates a specific intent standard in two ways: it defines drug paraphernalia as any item “used, designed for use, or intended for use” with illegal drugs; and it defines the substantive offenses in terms of specific intent.

Fourth, § 287A contains thirteen factors that may be considered by enforcing authorities in determining whether the requisite intent exists to make an item drug paraphernalia; § 287(d) contains but one factor. ****** Because of these differences, §§ 287(d) and 287A are not identical statutes applicable to identical offenses, (emphasis added). 66 Op.Att’y Gen. at 127-28. It is incumbent upon the court in a criminal case to instruct the jury on every point of law essential to the crime ⁵⁶² charged when requested to do so. Hardison v. State, 226 Md. 53, 60 , 172 A.2d 407 (1960). It is evident that in the case at bar, contrary to defense counsel’s request of the court to correct its instruction and advise the jury as to the elements of the crime charged, the court failed to do so.

We must reverse the judgment of conviction as to Count III and grant a new trial as to that charge.

III

Reference to Jamaican Drug Trafficking The appellant